Last week, the Federal Communications Commission (FCC) weighed in on the longstanding dispute between broadband provider Comcast, and users that share files over the BitTorrent application. In an order that has yet to be released, the Commission found that Comcast had violated its users’ rights by blocking BitTorrent traffic and misleading the public about its actions. BitTorrent users claimed a victory as Comcast was ordered to end its discriminatory practices. Unfortunately, as we discussed in our previous post, the precedent that emerges from the order is a rather narrow one. To put it briefly, discriminatory practices that don’t further reasonable network management goals are forbidden. Clever broadband providers can probably work around this restriction, though, by using intelligent congestion control or prioritization techniques, which can similarly degrade file sharing applications. Although the FCC has left itself some space to redefine “reasonable” network management in the future, its stance appears timid when compared with other strategies it could have followed. Here, we present three alternate frameworks the Commission could have relied on.
1. Commissioner Michael Copps argues that the FCC should adopt an explicit principle of non-discrimination. Discrimination is a tricky concept to define, and sketching the boundary of such a principle would admittedly be a challenge. Nevertheless, a non-discrimination principle would guard against many potential abuses that are likely to follow in the wake of Comcast. For example, such a rule could be used to pursue an ISP that reserved a lot of bandwidth for normal web traffic, leaving little for file sharers. Comments by FCC chairman Kevin Martin suggest that this type of prioritization is permitted under the current order.
2. The FCC could alternately resurrect the old Title II framework for broadband providers, which existed before 2002. This framework recognized broadband service as a “pure” and “transparent” transmission of data, and imposed a number of common carrier rules, including an obligation not to discriminate.
3. Both the above approaches, as well as the FCC’s, miss out on one crucial development: telecommunications convergence. As network technology has progressed, the old divisions between internet, television, and telephone have steadily disappeared. All these services now use the same basic technology, and what little divisions remain are largely artificial. A forward-looking approach for the FCC must therefore recognize that there is essentially just one network.
This kind of framework would illuminate the root cause behind Comcast’s discrimination: a company with a lot of power in one market (for broadband access), trying to leverage that power into a second market (for network content). Comcast could be regulated much like any other firm in this situation: by requiring non-discriminatory access for all network services. In other words, television content and internet content should have equal opportunities to purchase network transport. This would eliminate today’s perverse incentives to limit internet bandwidth, lest YouTube becomes a better substitute for television. It would also invite companies to innovate in television service and invent new hybrid models of entertainment.
Such a framework remains farfetched today, and telecommunications firms everywhere are working hard to maintain the illusion that there are separate networks. Nevertheless, the long-term trend of convergence is unmistakable, and we may one day see our laws catch up to it.